Opinion

People v. Clark

Court: California Supreme Court
Filed: Feb 22, 2024
Status: Published
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

KEJUAN DARCELL CLARK,

Defendant and Appellant.

S275746

Fourth Appellate District, Division Two

E075532

Riverside County Superior Court

RIF1503800

February 22, 2024

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Groban,

Jenkins, and Evans concurred.

PEOPLE v. CLARK

S275746

Opinion of the Court by Kruger, J.

This is one in a series of cases concerning the gang

sentencing provisions in Penal Code section 186.22 (section

186.22), as they were recently amended by Assembly Bill

No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which was

signed into law in 2021 (see Stats. 2021, ch. 699, §3).

The question in this case concerns Assembly Bill 333’s

changes to the requirements for proving the predicate offenses

constituting a “pattern of criminal gang activity” — one of the

requirements for proving the existence of a “criminal street

gang.” (§ 186.22, subds. (e), (f).) As amended by Assembly Bill

333, section 186.22 defines the term “ ‘criminal street gang’ ” to

mean “an ongoing, organized association or group of three or

more persons, . . . whose members collectively engage in, or have

engaged in, a pattern of criminal gang activity.” (§ 186.22, subd.

(f), italics added (section 186.22(f)).) The amended statute

defines the “ ‘pattern of criminal gang activity,’ ” in turn, to

mean, in pertinent part, the commission of (or other specified

forms of involvement in) two offenses enumerated in the statute,

“provided . . . [they] were committed on separate occasions or by

two or more members” of the gang and the offenses provided a

benefit to the gang that is more than reputational. (§ 186.22,

subd. (e)(1), italics added (section 186.22(e)(1)).)

The Courts of Appeal have divided over whether, under

the statute as amended by Assembly Bill 333, the statutory

reference to “collective[]” engagement in a pattern of criminal

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Opinion of the Court by Kruger, J.

gang activity is properly read to mean that each of the two

predicate offenses must be committed in concert with other gang

members and cannot be committed by individual gang members

acting alone. We conclude that this reading is refuted by the

plain language of the statute, which says that the predicate

offenses must be “committed on separate occasions or by two or

more members.” (§ 186.22(e)(1), italics added.) We go on,

however, to consider what the collective engagement

requirement does mean. Reading the statutory text in light of

the Legislature’s purpose of more narrowly targeting the threats

posed by organized group activity, we hold that collective

engagement requires a nexus between the individual predicate

offenses and the gang as an organized, collective enterprise.

This organizational nexus requirement is satisfied by showing a

connection between the predicate offenses and the

organizational structure, primary activities, or common goals

and principles of the gang. Because the Court of Appeal did not

account for this feature of the statute, we reverse and remand

for further proceedings.

Defendant Kejuan Darcell Clark was charged with several

offenses stemming from a July 2015 incident in which he and

others entered a woman’s home without permission. The

prosecution alleged that Clark proceeded to the woman’s

bedroom, where he raped her, then stole her laptop computer

and phone. (People v. Clark (2022) 81 Cal.App.5th 133, 137–141

(Clark).)

At the time, Clark was a member of the Northside

Parkland street gang, a subset of the Sex Cash Money street

gang. (Clark, supra, 81 Cal.App.5th at p. 138.) In addition to

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Opinion of the Court by Kruger, J.

charging the substantive offenses, the prosecution alleged

various gang enhancements under section 186.22, subdivision

(b). To establish the gang enhancements, the prosecution

introduced the testimony of a gang expert. The gang expert

testified that the primary activities of the gang included a

variety of criminal offenses, including robbery and burglary.

The expert described Sex Cash Money as a loosely controlled

organization. The gang did not have a leader and formal

structure; instead, there were “big homies” in the gang who were

older and looked up to by other members. The expert was not

aware of any expectation for Sex Cash Money members to give

proceeds from a robbery or burglary to the gang, unlike some

gangs that had specific requirements to “pay upstairs” after

such crimes. Much of the expert’s testimony was devoted to

establishing that the individuals with Clark on the night of the

charged burglary were also gang members and that the charged

burglary would benefit the gang.

To prove the requisite pattern of criminal gang activity by

the gang, the prosecution introduced certified convictions

showing that another gang member, Damon Ridgeway, had

pleaded guilty to robbery in 2014 and to residential burglary in

2009, and that Clark had pleaded guilty to attempted burglary

in 2014. The expert testified that those offenses, and the

conviction or pleas of Clark’s codefendants in the charged

burglary, showed a pattern of criminal activity by Sex Cash

Money. The testimony did not address whether the predicate

offenses, as distinct from the charged burglary, benefited the

gang, or how they were otherwise related to the gang.

The jury convicted Clark of rape (Pen. Code, § 261,

subd. (a)(2)), forced oral copulation (id., § 287, subd. (c)(2)(A)),

false imprisonment (id., § 236), first degree burglary (id., §§ 459,

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Opinion of the Court by Kruger, J.

460, subd. (a)), and robbery in concert inside an inhabited

dwelling (id., §§ 211, 213, subd. (a)(1)(A)). The jury found the

gang enhancement allegations true as to the burglary, robbery,

and false imprisonment counts. (Clark, supra, 81 Cal.App.5th

at pp. 135–136; see § 186.22, subd. (b)(1)(C).) Clark was

sentenced to 20 years plus an indeterminate term of 90 years to

life, including a 10-year term for the gang enhancement.

Clark appealed his convictions and sentence. While his

appeal was pending, the Assembly Bill 333 amendments to

section 186.22 took effect. Clark argued, and the People did not

dispute, that the amendments applied retroactively to cases on

direct review. (Clark, supra, 81 Cal.App.5th at p. 144, fn. 11.)

Invoking the collective engagement provision of the new law,

Clark asserted that the evidence of predicate offenses at trial

was insufficient to support the gang enhancements because the

evidence showed only the commission of offenses by individual

gang members. Clark argued that the statute, as amended by

Assembly Bill 333, required two or more gang members, acting

in concert, to commit each of the two required predicate offenses.

(Clark, at pp. 143–144.)

The Court of Appeal rejected this argument as

inconsistent with the definition of a “ ‘pattern of criminal gang

activity’ ” in section 186.22(e)(1), which requires that the two

predicate offenses “were committed on separate occasions or by

two or more members.” The court reasoned that, under the plain

language of the statute, “there are two options for establishing

the requisite pattern [of predicate offenses]: (1) prove two

different gang members separately committed crimes on two

occasions; or (2) prove two different gang members committed a

crime together on a single occasion.” (Clark, supra, 81

Cal.App.5th at p. 144.) Here, the evidence was sufficient

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Opinion of the Court by Kruger, J.

because it showed that “two different gang members separately

committed crimes on two occasions.” (Ibid., italics added.)

The Court of Appeal expressly disagreed with People v.

Delgado (2022) 74 Cal.App.5th 1067, which held that collective

engagement under section 186.22(e)(1) requires proof that each

of the predicate offenses was committed by at least two gang

members acting in concert, and with People v. Lopez (2021) 73

Cal.App.5th 327, 345, which had reversed gang enhancements

where “[n]o evidence was introduced at trial to establish that

the crimes committed by [individual gang members] constitute

collective criminal activity.”

We granted review to address the issue.

II.

The Legislature first enacted section 186.22 in 1988 as

part of the California Street Terrorism Enforcement and

Prevention Act (Pen. Code, § 186.20 et seq.), also known as the

STEP Act. (See Stats. 1988, ch. 1242, § 1, pp. 4127–4130.)

Subdivision (b) of section 186.22 prescribes “sentence

enhancements or alternate penalties of varying length for ‘any

person who is convicted of a felony committed for the benefit of,

at the direction of, or in association with any criminal street

gang, with the specific intent to promote, further, or assist in

any criminal conduct by gang members.’ (§ 186.22(b)(1); see id.,

subd. (b)(4).)” (People v. Renteria (2022) 13 Cal.5th 951, 962.)

The STEP Act also defines a substantive offense punishing

active participation in a criminal street gang. (§ 186.22,

subd. (a).)

As originally enacted, the statute defined a “ ‘criminal

street gang’ ” as “any ongoing association of three or more

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Opinion of the Court by Kruger, J.

persons that shares a common name or common identifying sign

or symbol; has as one of its ‘primary activities’ the commission

of specified criminal offenses; and engages through its members

in a ‘pattern of criminal gang activity.’ [Citation.] Under the

[STEP Act], ‘pattern of criminal gang activity’ means that gang

members have, within a certain time frame, committed or

attempted to commit ‘two or more’ of specified criminal offenses

(so-called ‘predicate offenses’).” (People v. Gardeley (1996) 14

Cal.4th 605, 610, italics omitted, citing former § 186.22.) The

original statute specified seven offenses, such as robbery, arson,

and witness intimidation, that made up the targeted “primary

activities” of a gang as well as the predicate offenses of the

gang’s members. (§ 186.22, former subd. (c); see also id., former

subd. (d).)

The Legislature substantially amended the STEP Act in

Assembly Bill 333, also known as the STEP Forward Act of

2021. (Stats. 2021, ch. 699, § 1.) The new legislation, which

became effective on January 1, 2022, made several changes to

the definition of section 186.22 gang enhancements. “First, it

narrowed the definition of a ‘criminal street gang’ to require that

any gang be an ‘ongoing, organized association or group of three

or more persons.’ (§ 186.22, subd. (f), italics added.) Second,

whereas section 186.22, former subdivision (f) required only that

a gang’s members ‘individually or collectively engage in’ a

pattern of criminal activity in order to constitute a ‘criminal

street gang,’ Assembly Bill 333 requires that any such pattern

have been ‘collectively engage[d] in’ by members of the gang.

(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also

narrowed the definition of a ‘pattern of criminal activity’ by

requiring that (1) the last offense used to show a pattern of

criminal gang activity occurred within three years of the date

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Opinion of the Court by Kruger, J.

that the currently charged offense is alleged to have been

committed; (2) the offenses were committed by two or more gang

‘members,’ as opposed to just ‘persons’; (3) the offenses

commonly benefitted a criminal street gang; and (4) the offenses

establishing a pattern of gang activity must be ones other than

the currently charged offense. (§ 186.22, subd. (e)(1), (2).)

Fourth, Assembly Bill 333 narrowed what it means for an

offense to have commonly benefitted a street gang, requiring

that any ‘common benefit’ be ‘more than reputational.’

(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169,

1206 (Tran).) And finally, Assembly Bill 333 omitted certain

nonviolent offenses from the list of offenses that could make up

a gang’s primary activities or form the requisite pattern of

criminal gang activity, reducing the list of offenses from 33 to

26. (Compare § 186.22, former subd. (e)(1)–(33), as amended by

Stats. 2017, ch. 561, § 178 with § 186.22(e)(1)(A)–(Z).)1

As amended, the definition of a “ ‘criminal street gang’ ”

now reads in full: “As used in this chapter, ‘criminal street gang’

means an ongoing, organized association or group of three or

more persons, whether formal or informal, having as one of its

primary activities the commission of one or more of the criminal

acts enumerated in subdivision (e), having a common name or

common identifying sign or symbol, and whose members

collectively engage in, or have engaged in, a pattern of criminal

gang activity.” (§ 186.22(f).)

The full definition of a “ ‘pattern of criminal gang

activity,’ ” as amended, now reads: “As used in this chapter,

‘pattern of criminal gang activity’ means the commission of,

attempted commission of, conspiracy to commit, or solicitation

of, sustained juvenile petition for, or conviction of, two or more

of the following offenses, provided at least one of these offenses

occurred after the effective date of this chapter, and the last of

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Opinion of the Court by Kruger, J.

In Tran, this court considered a number of questions

concerning Assembly Bill 333’s application to cases tried before

its effective date. Tran held, in line with a substantial body of

appellate authority, that Assembly Bill 333’s amendments to

the definition of section 186.22 gang enhancements are

retroactively applicable to cases on direct review. (Tran, supra,

13 Cal.5th at p. 1207.) Tran also considered a question similar

to the one presented in this case, concerning Assembly Bill 333’s

application to predicate offenses involving individual gang

members, but we did not have occasion to decide it. Instead,

accepting the Attorney General’s confession of error, we

reversed the gang enhancement without addressing whether

the statute allows for the admission of predicate offenses

committed by lone gang members. We explained that “because

the jury was not presented with any discernible theory as to how

[individual gang] members ‘collectively engage[d] in’ the[]

predicate crimes,” “[w]e need not resolve the contours of

Assembly Bill 333’s collective engagement requirement.” (Tran,

at p. 1207.) We now turn to that task.

We begin by addressing the narrow conflict in the Courts

of Appeal about the scope of Assembly Bill 333’s changes to

section 186.22’s predicate offense requirement. The conflict

centers on the interaction between the two definitional

those offenses occurred within three years of the prior offense

and within three years of the date the current offense is alleged

to have been committed, the offenses were committed on

separate occasions or by two or more members, the offenses

commonly benefited a criminal street gang, and the common

benefit from the offenses is more than reputational.”

(§ 186.22(e)(1).)

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provisions pertinent to the requirement. First, there is the

definition of the term “ ‘criminal street gang’ ” to mean, as

relevant here, “an ongoing, organized association or group of

three or more persons, . . . whose members collectively engage

in, or have engaged in, a pattern of criminal gang activity.”

(§ 186.22(f), italics added.) The use of the word “collectively”

represents a change to the former law, which had required that

gang members “individually or collectively engage in” a pattern

of criminal gang activity (§ 186.22, former subd. (f)). Then,

second, there is the nested definition of “ ‘pattern of criminal

gang activity,’ ” which states that the requisite pattern is

established by commission of two enumerated offenses, so long

as they “were committed on separate occasions or by two or more

members” of the gang and the offenses provided a common

benefit to the gang that is more than reputational.

(§ 186.22(e)(1).) In the “pattern” definition, the requirement

that the predicate offenses provide a common benefit is new, but

the “on separate occasions or by two or more members” language

is largely the same as in the original STEP Act; Assembly Bill

333 replaced “two or more persons” with “two or more members”

but otherwise preserved the language of the original.

In an effort to give effect to the amended statute’s

collective engagement language, the Court of Appeal in Delgado

concluded that each predicate offense must be committed by two

or more gang members. (People v. Delgado, supra, 74

Cal.App.5th at p. 1088.) The court relied on the “commonsense”

meaning of the word “ ‘collectively,’ ” as well as the history

behind its deployment in Assembly Bill 333. (Delgado, at

p. 1088.) The court explained that before Assembly Bill 333, the

predicate offense requirement could be established “by proving

two gang members individually committed the predicate

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offenses on two separate occasions.” (Delgado, at p. 1089, citing

§ 186.22, former subd. (e).) A reading that would instead

require proof that at least two gang members committed each

predicate offense, the Court of Appeal reasoned, was consistent

with “the Legislature’s intent to dramatically limit the scope of

the gang enhancement.” (Delgado, at p. 1089.)

The obvious difficulty with this reading is that it fails to

give meaning to the language of section 186.22(e)(1), which

states that the requisite pattern of criminal activity is

established by two offenses committed “on separate occasions or

by two or more members.” (§ 186.22(e)(1), italics added.) The

Delgado court never attempted to explain how its approach

could be squared with this provision, and we do not believe it

can. By contrasting offenses committed on “separate occasions”

with those committed by “two or more members,” the language

of section 186.22(e)(1) indicates that only the second alternative

requires the participation of more than one gang member. This

is the most straightforward reading of the language of the

statute. It is also how this court understood the same language

when asked to interpret it some 25 years ago. (People v. Loeun

(1997) 17 Cal.4th 1, 9 (Loeun) [the “Legislature’s use of the

disjunctive ‘or’ in [§ 186.22, former subd. (e)] indicates an intent

to designate alternative ways of satisfying the statutory

requirements”]; see People v. Gardeley, supra, 14 Cal.4th at

p. 624 [crime committed by an individual gang member

constituted a predicate offense under § 186.22, former subd.

(e)].) The Legislature preserved this language in Assembly Bill

333, even as it changed the language of section 186.22(e)(1) in

other respects. (See Tran, supra, 13 Cal.5th at p. 1206

[detailing changes].) We presume the Legislature understood

that the effect of retaining the language intact would be to

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preserve the long-settled understanding of its meaning. (See,

e.g., Tuolumne Jobs & Small Business Alliance v. Superior

Court (2014) 59 Cal.4th 1029, 1039 [“ ‘The Legislature is

presumed to be aware of all laws in existence when it passes or

amends a statute.’ ”].)2

Clark argues that there now exists tension between

section 186.22(e)(1) and section 186.22(f) that pre-Assembly Bill

333 cases such as Loeun did not, and could not have, addressed.

But if there is indeed tension, the approach taken in Delgado

does not resolve it. Rather than harmonize the two provisions,

in its effort to give meaning to section 186.22(f)’s reference to

In Loeun, we interpreted the statute to mean that the

prosecution could rely on the substantive offense charged in the

case as one of the predicate offenses establishing a pattern of

criminal gang activity. (Loeun, supra, 17 Cal.4th at p. 5.)

Assembly Bill 333 overturned this aspect of Loeun by expressly

requiring proof of two predicate offenses other than the charged

offense. (Stats. 2021, ch. 699, § 3, adding § 186.22, subd. (e)(2).)

But Assembly Bill 333 left untouched the disjunctive

formulation of the requirement in section 186.22, subdivision

(e)(1) that predicate offenses be committed “on separate

occasions or by two or more” members. (Stats. 2021, ch. 699, § 3,

italics added.)

Assembly Bill 333 also retained in the statutory list of

qualifying predicate offenses certain crimes that are ordinarily

committed by individuals, such as carrying a concealed firearm

and other similar firearm offenses (e.g., § 186.22, subd. (e)(1)(Y);

see also, e.g., id., subd. (e)(1)(U), (X)), and rape as defined in

Penal Code section 261 (id., § 186.22, subd. (e)(1)(L)), rather

than the offense of rape in concert with another person (id.,

§ 264.1, subd. (a)). The Legislature’s retention of crimes

ordinarily committed by persons acting alone is an additional

indication that predicate offenses can be committed by

individual gang members and do not have to be committed by

multiple gang members acting in concert.

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collective engagement, Delgado effectively rewrites section

186.22(e)(1) to give it a meaning at odds with its text — that

predicate offenses may be “committed on separate occasions by

two or more members, or by two or more members.” The result

of the insertion is not just to create an awkward redundancy,

but to change the meaning of the sentence by effectively

nullifying the disjunctive clause “or by two or more members.”

(See People v. Garcia (1999) 21 Cal.4th 1, 10 [a court should not

“disregard or rewrite some portion of the statute” but should

“harmonize and give effect to all its provisions”].)

The unlikely reading Delgado gives to section 186.22(f)’s

collective engagement language is not compelled by the

ordinary, commonsense meaning of the phrase. The phrase

“collectively engage” is not always a synonym for “commit in

concert.” It can have that meaning. But the word “collectively”

is just as often used to refer to distinctively individual acts that,

considered in the aggregate, form a general pattern. (Webster’s

3d New Internat. Dict. (2002) p. 444 [“collective” denotes “a

number of persons or things considered as constituting one

group” or “aggregated”]; see, e.g., People v. Miranda-Guerrero

(2022) 14 Cal.5th 1, 12 [multiple interrogations “collectively”

spanned a three-day period]; People v. Dalton (2019) 7 Cal.5th

166, 262 [various instructions “collectively” conveyed the

appropriate concept].) Nor is it clear that the collective

engagement language, as it is used in the context of section

186.22(f), was meant to refer to the “collective[]” engagement of

just two gang members. The language appears in a general

definition of “ ‘criminal street gang,’ ” following a list of

attributes pertaining to the gang as a whole: its size, its primary

activities, its “common name or common identifying sign or

symbol.” (§ 186.22(f).) In that context, the reference to “whose

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members collectively engage in, or have engaged in, a pattern of

criminal gang activity” (ibid., italics added) appears more likely

intended to refer to at least some measure of engagement by the

gang’s membership as a whole, rather than referring just to the

“collective[]” actions of a couple of individual members.

Nor is the Delgado court’s reading compelled by

consideration of the functional role the collective engagement

language plays in the statutory scheme. The law recognizes that

offenses committed by lone actors can be gang-related. (E.g.,

People v. Renteria, supra, 13 Cal.5th at p. 964.) The law also

recognizes that criminal street gangs typically involve “a

network of participants with different roles and varying kinds

of involvement.” (People v. Johnson (2013) 57 Cal.4th 250, 266.)

As the Attorney General here notes, an individual gang member

could be responsible for collecting “taxes” from local drug dealers

on behalf of the gang, for violently assaulting those who do not

pay, or even for killing members of rival gangs. Such offenses,

though committed by individual gang members, would seem to

present no less a concern about broader patterns of criminal

gang activity — that is, collective engagement in crime — than

if they had been committed by two gang members acting

together.3 Certainly the Legislature that enacted Assembly Bill

Amicus curiae Peace and Justice Law Center argues that

the reference to predicate offenses committed “on separate

occasions or by two or more members” (§ 186.22(e)(1)) contains

a drafting error, and that the Legislature intended to replace

the preexisting “or” with “and.” We have acknowledged that an

“inadvertent” mix-up of “ ‘or’ ” and “ ‘and’ ” “is a familiar

example of a drafting error which may properly be rectified by

judicial construction.” (People v. Skinner (1985) 39 Cal.3d 765,

775.) But “[a]lthough we may properly decide upon such a

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333 could plausibly so conclude. That it left intact the

disjunctive reference to offenses committed “on separate

occasions or by two or more members” (§ 186.22(e)(1), italics

added), suggests it did just that.

The question, however, remains: If the “collectively

engage” language in section 186.22(f) does not mean that each

predicate offense must have been committed by at least two

gang members acting in concert, then what does it mean? The

language does not point to clear answers. In briefing the issue

in this court, the Attorney General has offered one possibility.

He suggests that by eliminating the reference to a gang’s

members “individually” engaging in a pattern of criminal gang

activity and instead focusing solely on “collective[]” engagement,

the Legislature was aligning the relevant portion of the

definition of a criminal street gang in section 186.22(f) with

other statutory changes, primarily, the new requirement that

the prosecution prove that each predicate offense conferred a

“common benefit” to the gang (§ 186.22(e)(1)).4

construction or reformation when compelled by necessity and

supported by firm evidence of the drafters’ true intent [citation],

we should not do so when the statute is reasonably susceptible

to an interpretation that harmonizes all its parts without

disregarding or altering any of them.” (People v. Garcia (1999)

21 Cal.4th 1, 6.) Here, the amendments can be harmonized

without altering a term, and there is ample reason to believe the

Legislature’s use of “or” was deliberate rather than inadvertent.

We therefore do not second guess the Legislature’s choice to

leave the relevant conjunction in place.

The Court of Appeal offered another alternative: that, to

be suggestive of collective engagement by “ ‘members’ ” of the

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Under the amended version of the statute, each predicate

offense must have conferred a “common benefit,” where the

common benefit is “more than reputational.” (§ 186.22(e)(1).)

“Examples of a common benefit that are [sic] more than

reputational may include, but are not limited to, financial gain

or motivation, retaliation, targeting a perceived or actual gang

rival, or intimidation or silencing of a potential current or

previous witness or informant.” (Id., subd. (g).) The Attorney

General notes that this change evidences Assembly Bill 333’s

“broader focus on viewing a criminal street gang as an

organized, collective entity” rather than a loose grouping of

individuals who may commit crimes for their own purposes. In

the briefing, the Attorney General has argued that it is

consistent with that focus to regard proof of a common benefit

from the predicate offenses as sufficient to establish collective

engagement in a pattern of criminal gang activity. The Attorney

General offers, by way of example, a scenario involving offenses

committed by three individual gang members: one who sells

drugs for the gang, a second who murders a rival drug dealer,

and a third who takes possession of the murder weapon to make

it difficult to identify the perpetrator of the murder. The

gang, predicate offenses committed on different occasions must

be committed by different gang members. (Clark, supra, 81

Cal.App.5th at p. 144.) The Attorney General resists that

alternative interpretation but notes that we need not decide the

issue here because the two predicate offenses in this case were

in fact committed by different gang members. We reserve for

another case the question whether the use of the plural

“members” means that the predicate offenses must be

committed by at least two different gang members, and whether

or not those gang members may include the defendant.

(§ 186.22(f).)

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offenses, though committed by individual gang members, all

confer a common benefit to the gang as a whole. And in so doing,

the Attorney General argues, they also demonstrate the gang’s

collective engagement.

This view — under which the collective engagement

language merely reinforces the new requirement that the

predicate offenses confer a common benefit on the gang, without

adding anything to it — is not entirely implausible. But neither

is it obviously correct. It is certainly reasonable to conclude that

the collective engagement and common benefit changes are

related, insofar as both changes represent a shift in emphasis

toward the attributes that connect individual criminal acts to

the larger gang as a collective enterprise. At the same time,

there is at least a conceptual difference between a requirement

that members of a gang collectively engage in the pattern of

criminal activity shown by predicate offenses, on the one hand,

and a requirement that each predicate offense commonly

benefited the gang, on the other. A group of people can benefit

from the acts of another without having collectively engaged in

them. A crime may achieve a benefit for the entire gang, and

yet say little about collective engagement. An enterprising gang

member, for example, may take it upon himself to perform a one-

time act of embezzlement from his workplace that generates

proceeds enjoyed by the gang, though the gang is neither aware

of nor condones the gang member’s brand of freelancing.

The Attorney General’s proffered example does suggest

collective engagement in the predicate offenses, but there is

more at work in the example than just a common benefit. As

the Attorney General himself describes it, the example is

designed to show how “the term ‘collectively’ in [section

186.22](f) is most naturally read to comport with the common

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structure of gangs and account for individual members’ various

roles in committing crimes for the common benefit of the gang,

viewed as a collective enterprise.” The concepts the Attorney

General invokes here — concerning the gang’s organizational

structure; the roles individual members play in carrying out its

primary activities; and consideration of the gang as a collective

enterprise — are all concepts that may overlap, but are not

always coextensive with the question whether individual

members’ offenses conferred a common benefit on the gang.

Ultimately, to discern the meaning of the collective

engagement language, we examine the legislative history for the

light it may shed. (See Walker v. Superior Court (2021) 12

Cal.5th 177, 194 [“If the relevant statutory language is

ambiguous, we look to appropriate extrinsic sources, including

the legislative history, for further insights”].)

Nothing in the legislative history speaks specifically to the

Legislature’s intentions in eliminating the reference to a gang

defined by members who “individually” engage in a pattern of

criminal gang activity (§ 186.22, former subd. (f)), and leaving

the requirement that members “collectively” engage in such a

pattern (§ 186.22(f)).5 What the history does indicate, however,

One senate analysis does describe the bill as revising the

law to require, among other things, that “the offenses were

committed by two or more members.” (Sen. Rules Com., Off. of

Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 333

(2021–2022 Reg. Sess.) as amended July 13, 2021, p. 4, italics

added.) But as we have already explained, the actual language

of the statute is to the contrary, and no similar description of

section 186.22(f) appears in any of the other available legislative

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Opinion of the Court by Kruger, J.

is that the collective engagement language in section 186.22(f)

was intended to have independent significance, separate and

apart from the requirements for proving predicate offenses in

section 186.22(e), such as the requirement to prove a common

benefit to the gang.

Legislative analyses emphasized that the bill would

redefine both the term “ ‘criminal street gang’ ” (§ 186.22(f)) and

the term “ ‘pattern of criminal gang activity’ ” (§ 186.22(e)). (See

Assem. Com. on Public Safety, Analysis of Assem. Bill No. 333

(2021–2022 Reg. Sess.) as amended Mar. 30, 2021, p. 1; Sen.

Com. on Public Safety, Analysis of Assem. Bill No. 333, supra,

as amended May 28, 2021, p. 2; Sen. Rules Com., Off. of Sen.

Floor Analyses, 3d reading analysis of Assem. Bill No. 333,

supra, as amended July 13, 2021, p. 4.) And analyses not only

listed the new proof that would be necessary to establish the

predicate offenses — that they were committed by gang

members, benefited the gang, and occurred within three years

of the charged offense — but also separately described the

requirements contained in section 186.22(f). (Assem. Com. on

Public Safety, Analysis of Assem. Bill No. 333, supra, as

amended Mar. 30, 2021, p. 8 [listing the requirements for

proving predicate offenses under section 186.22(e) and

separately noting that the revised section 186.22(f) “would also

require the prosecution to prove the members collectively,

history documents. (See, e.g., Sen. Com. on Appropriations,

Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as

amended July 13, 2021, p. 2; Sen. Com. on Public Safety,

Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as

amended May 28, 2021, p. 4.) We thus place no weight on what

appears to be a stray misdescription of the bill in a single line of

a single document.

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Opinion of the Court by Kruger, J.

rather than individually, engage in, or have engaged in a

‘pattern of criminal gang activity’ ”]; see also Sen. Rules Com.,

Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill

No. 333, supra, as amended July 13, 2021, p. 4 [same, regarding

the final version of the bill].) If the Legislature had intended

changes to section 186.22(f) to simply reflect and conform to the

requirements of section 186.22(e)(1), as the Attorney General

has argued, it seems unlikely that these descriptions of the bill

would have listed and described collective engagement as a

change with its own distinct meaning.

To discern that meaning, we turn to what the history

reveals, more generally, about the Legislature’s purposes in

enacting Assembly Bill 333. The overarching purpose of the

original STEP Act, as articulated in the declaration

accompanying its initial enactment in 1988, is “to seek the

eradication of criminal activity by street gangs by focusing upon

patterns of criminal gang activity and upon the organized

nature of street gangs, which together, are the chief source of

terror created by street gangs.” (Pen. Code, § 186.21.)

Committee reports further explained that the STEP Act was

meant to target criminal street gangs the sponsors

characterized as “large scale big business and large-scale crime

in California.” (Assem. Com. on Public Safety, Analysis of

Assem. Bill No. 2013 (1987–1988 Reg. Sess.) June 8, 1987, p. 4;

see also Assem. Com. on Public Safety, Analysis of Sen. Bill

No. 1555 (1987–1988 Reg. Sess.) as amended June 23, 1987, p. 4

[same].) To effectuate this purpose, the Legislature crafted a set

of requirements for proving the existence of a pattern of criminal

gang activity based on the commission of predicate offenses.

When the Legislature undertook to revise the STEP Act in

2021, it expressed concern that the Act had strayed from this

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Opinion of the Court by Kruger, J.

original purpose, with a devastating impact on California

communities. Although the STEP Act “was originally enacted

to target crimes committed by violent, organized criminal street

gangs,” and was only meant to apply “ ‘in the most egregious

cases where a pattern of criminal gang activity was clearly

shown,’ ” the STEP Act “has been continuously expanded

through legislative amendments and court rulings.” (Assem.

Bill 333, § 2(g).) The result, the Legislature found, was that

“[c]urrent gang enhancement statutes criminalize entire

neighborhoods historically impacted by poverty, racial

inequality, and mass incarceration as they punish people based

on their cultural identity, who they know, and where they live.”

(Id., § 2(a).) Groups of residents in certain neighborhoods “are

often mischaracterized as gangs despite their lack of basic

organizational requirements such as leadership, meetings,

hierarchical decisionmaking, and a clear distinction between

members and nonmembers.” (Id., § 2(d)(8).)

Through Assembly Bill 333, the Legislature sought to

narrow the statute’s focus to align with its original intent: to

focus on the threats posed by organized criminal street gangs.

(See, e.g., Assem. Com. on Public Safety, Analysis of Assem. Bill

No. 333, supra, as amended Mar. 30, 2021, pp. 7–8 [Assem. Bill

333 would “redefine the term ‘criminal street gang’ ” to reflect a

recommendation from the committee on revision of the Penal

Code to focus the definition on “organized, violent enterprises”].)

The Legislature made several changes toward this end,

beginning with its revision of the term “ ‘criminal street gang’ ”

to mean “an ongoing, organized association or group of three or

more persons . . . whose members collectively engage” in a

pattern of criminal gang activity. (§ 186.22(f), italics added.)

While the legislative history may not clearly indicate the

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Opinion of the Court by Kruger, J.

intended meaning of the Legislature’s switch to a requirement

of collective engagement in a pattern of criminal gang activity,

it is clear what the Legislature meant this change to accomplish.

The change was made in service of the Legislature’s broader

goal of differentiating between the threat posed by organized

groups collectively engaged in criminal activity, versus the

threat posed by individual, loosely connected persons who

happen to commit crimes. That differentiation, we now

conclude, requires a showing that links the two predicate

offenses to the gang as an organized, collective enterprise.6

The Attorney General’s argument proceeds from this same

premise. But, as the Attorney General ultimately conceded at

oral argument, a singular focus on the common benefit

requirement in section 186.22(e) does not prove the existence of

a criminal street gang as defined in section 186.22(f). The fact

The Legislature initially added, but then dropped, a

requirement that the predicate offenses “were committed for the

benefit of, at the direction of, or in association with, the criminal

street gang, with the specific intent to promote, further, or assist

in criminal conduct by members of the criminal street gang at

issue.” (Legis. Counsel’s Dig., Assem. Bill No. 333 (2021–2022

Reg. Sess.), as amended Mar. 24, 2021.) That provision would

have required, with respect to predicate offenses, the same

gang-related and specific intent showings now required of the

charged offense, including an inquiry into the mens rea of the

typically absent third party gang member who allegedly

committed the offense. (See § 186.22, subd. (b)(1), (4); see also

People v. Renteria, supra, 13 Cal.5th at p. 965 [describing the

showing these provisions require with respect to the charged

offense].) That the Legislature discarded this more onerous

requirement does not affect our conclusion that the language the

Legislature did enact requires that some connection be shown

between the predicate offenses and the gang as a collective

enterprise.

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Opinion of the Court by Kruger, J.

that a crime may have commonly benefited a gang certainly tells

us something about the relationship between the perpetrator

and the gang, but it does not necessarily tell us how the gang

itself can be said to have “collectively engaged” in a pattern of

crime. The Attorney General acknowledged that after proving

that a predicate offense conferred a common benefit on the gang,

it is still necessary to show that the offense reflected an

“organized effort” by the criminal street gang. The Legislature’s

reference to collective engagement thus calls for an inquiry not

just into how the predicate offenses benefited the gang, but also

how the gang works together as a gang. It calls for a showing of

a connection, or nexus, between an offense committed by one or

more gang members and the organization as a whole.

This organizational nexus may be shown by evidence

linking the predicate offenses to the gang’s organizational

structure, meaning its manner of governance; its primary

activities; or its common goals and principles. By reference to

these elements of a gang’s affairs and operations, we do not

mean to overstate the degree of formality required. As we have

recognized, some gangs have a “ ‘loose’ ” structure (People v.

Ware (2022) 14 Cal.5th 151, 170), while others are “highly

ordered and disciplined,” with a “well-defined” hierarchy (People

v. Masters (2016) 62 Cal.4th 1019, 1027). Similarly, some gangs

may have loosely defined goals and principles, while others may

have clearly defined missions. Given this variability, collective

engagement will be established in different ways.

In some cases, for example, there might be evidence of a

direct order from the gang to commit specific crimes. (E.g.,

People v. Lewis (2021) 11 Cal.5th 952, 958 [the murder would

have been agreed on at a meeting called by the gang’s “ ‘ “shot

caller” ’ ”]; In re Masters (2019) 7 Cal.5th 1054, 1063 [a certain

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Opinion of the Court by Kruger, J.

attack “would normally have been ordered only by the highest

echelon of a gang’s leadership”].) Alternatively, evidence might

show a more general, well-understood expectation that

members must engage in certain types of offenses. (E.g., People

v. Elizalde (2015) 61 Cal.4th 523, 528 [junior members received

a general order to attack rivals to support the gang and earn

their status].) In other cases, collective engagement might be

shown by demonstrating that the offenses are reflective of the

primary activities of the gang, or else adhere to a common goal

or plan characteristic of the gang in question. (E.g., People v.

Johnson, supra, 57 Cal.4th at p. 256 [members played different

roles in carrying out the gang’s activities, either selling drugs,

patrolling the gang’s territory, or killing rivals]; People v.

Chhoun (2021) 11 Cal.5th 1, 16 [a gang’s complex robberies

followed a common plan of targeting similar victims and relying

on members to play specific roles].)

The Attorney General offers several illustrations of

collective engagement. Although nominally offered in support

of the Attorney General’s common benefit argument, each in fact

illustrates the meaning of collective engagement as we have

described it. In one example, a gang tasked members with

collecting “taxes” from local businesses or drug dealers as a way

of maintaining the gang’s territory. In a second example, the

gang directed members to sell drugs in the gang’s territory with

proceeds from the sales used to benefit the gang. A third

example described a gang in which members were authorized to

attack rivals on a “green light list” maintained by the gang. And

in another scenario, discussed above, one member sold drugs for

the gang, a second murdered a rival drug dealer, and a third hid

the murder weapon. In these examples, gang members play a

role in enforcing the territory and terms of the gang’s drug trade

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Opinion of the Court by Kruger, J.

or, by killing certain targeted individuals, carry out an edict to

eliminate rivals who pose a threat to the gang. In all of the

examples, the predicate offenses create a common benefit to the

gang. But in all of the examples, the offenses also relate to the

essential characteristics of the criminal street gang — its

organizational structure, primary activities, or common goals

and principles.

The Attorney General’s examples thus reinforce our

understanding of the collective engagement language. The core

inquiry is whether there exists an organizational nexus between

the crime and the gang. For reasons explained above, this is

conceptually distinct from the requirement to prove that each

predicate offense “commonly benefited” the gang

(§ 186.22(e)(1)), even though the facts necessary to prove the two

requirements will often overlap with one another. Though the

crimes in the examples above may have been committed by

individual gang members, and provided a benefit to the gang,

the undertakings reflect the collective engagement of the gang

inasmuch as there exists an organizational nexus between the

crimes and the particular characteristics of the “ ‘criminal street

gang’ ” established under section 186.22(f).

III.

Clark is entitled to a remand for further proceedings

unless the lack of instruction on new elements that apply

retroactively under In re Estrada (1965) 63 Cal.2d 740 is

harmless beyond a reasonable doubt. (People v. Cooper (2023)

14 Cal.5th 735, 742; Tran, supra, 13 Cal.5th at p. 1207.) We

conclude that the lack of instruction was not harmless.

The Court of Appeal in this case held that because there

was evidence that two members of Sex Cash Money committed

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Opinion of the Court by Kruger, J.

crimes on separate occasions, any reasonable jury would have

concluded beyond a reasonable doubt that “members of Sex

Cash Money ‘collectively . . . have engaged in . . . a pattern of

criminal gang activity.’ (§ 186.22, subd. (f).)” (Clark, supra, 81

Cal.App.5th at p. 146.) For reasons we have explained, we do

not agree; to establish collective engagement, the prosecution

should have established a nexus between the offenses and the

gang as a collective enterprise. There is no evidence in the

record from which a jury could have found such a nexus beyond

a reasonable doubt.

The evidence of each predicate offense was a plea

agreement that contained little information besides the fact that

Ridgeway pleaded guilty to robbery and Clark pleaded guilty to

attempted residential burglary.7 Although the expert testifying

As indicated, the prosecution presented evidence of

additional predicate offenses: certified convictions for

Ridgeway, who pleaded guilty to a 2009 residential burglary

with a gang enhancement, and for the three gang members with

Clark during the July 2015 break-in, who each pleaded or were

found guilty of burglary for their roles in that offense. After

amendment, section 186.22 provides that at least one of the

predicate offenses must have occurred “after the effective date

of this chapter, and the last of those offenses occurred within

three years of the prior offense and within three years of the

date the current offense.” (§ 186.22(e)(1).) The amendments

also established that the currently charged crime cannot be used

as a predicate offense (id., subd. (e)(2)). As such, evidence of

Ridgeway’s 2009 burglary and the other gang members’

participation in the current offense do not qualify as predicate

offenses under the amended statute. The Attorney General

asserts that Ridgeway’s 2009 conviction qualifies under the

amended statute, “because there was another offense committed

within three years of the charged offense.” This misreads the

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Opinion of the Court by Kruger, J.

for the prosecution discussed the benefits that might flow to the

gang from the charged crimes, the prosecution did not present

evidence to establish whether the predicate offenses were

committed to benefit the gang, or whether there existed an

organizational nexus between those offenses and the gang as a

collective enterprise. “Under these circumstances, we cannot

conclude ‘beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’ ” (People v. Cooper,

supra, 14 Cal.5th at p. 746.)

We reverse the judgment of the Court of Appeal as to

Clark’s gang enhancement, with instructions to remand to the

superior court for further proceedings consistent with this

opinion.8 The People are free on remand to offer additional

evidence to satisfy the newly enacted requirements of section

186.22. (See People v. Cooper, supra, 14 Cal.5th at p. 746

[reversing the pre-Assem. Bill 333 gang enhancement for

timing requirements. The two 2014 convictions (one for

Ridgeway and one for Clark) are within three years of the

charged offense, but Ridgeway’s prior 2009 conviction is not

within three years of those offenses.

We disapprove People v. Delgado, supra, 74 Cal.App.5th

1067, to the extent it articulates an interpretation of the

collective engagement requirement different from the one we

have described here. Similarly, we disapprove of People v.

Lopez, supra, 73 Cal.App.5th 327, to the extent the court’s

implicit assumptions about the meaning of collective

engagement may conflict with this opinion. Recognizing the

conflict between the Courts of Appeal in Delgado and in this

case, the court in Rodas-Gramajo v. Superior Court (2023) 92

Cal.App.5th 656 assumed that Delgado’s interpretation applied,

requiring predicate offenses to be committed by two gang

members acting in concert. (Id. at p. 668 & fn. 7.) We

disapprove of that portion of Rodas-Gramajo v. Superior Court,

supra, 92 Cal.App.5th 656 as well.

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Opinion of the Court by Kruger, J.

insufficient proof and recognizing authority entitling the People

to retry the affected charges on remand].)

KRUGER J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Clark

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 81 Cal.App.5th 133

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S275746

Date Filed: February 22, 2024

__________________________________________________________

Court: Superior

County: Riverside

Judge: Bambi J. Moyer

__________________________________________________________

Counsel:

Patrick Morgan Ford, under appointment by the Supreme Court, for

Defendant and Appellant.

Sylvia Perez MacDonald, Lana M. Kreidie; and William Safford for

Santa Clara County Independent Defense Counsel Office as Amicus

Curiae on behalf of Defendant and Appellant.

Sean Garcia-Leys for Peace and Justice Law Center as Amicus Curiae

on behalf of Defendant and Appellant.

Sixth District Appellate Program and Jonathan Grossman for Pacific

Juvenile Defender Center as Amicus Curiae on behalf of Defendant

and Appellant.

Mary K. McComb, State Public Defender, and Elias Batchelder,

Deputy State Public Defender, for Office of the State Public Defender

as Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland and Charles C. Ragland, Assistant

Attorneys General, Steve Oetting, Alana Cohen Butler and Paige B.

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Patrick Morgan Ford

Attorney at Law

1901 First Avenue, Suite 400

San Diego, CA 92101

(619) 236-0679

Paige B. Hazard

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 540-0201

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.